Denise Isensee, a Florida woman, was awarded a jury verdict for $1,165,452.60 for injuries she incurred after being rear-ended in a car accident in Pasco County. The defendant’s insurance company, Allstate, appealed the judgment to Florida’s 2nd District Court of Appeal, complaining that the trial judge erred by 1) limiting the testimony of the defense expert, Dr. Michael Foley; 2) limiting the testimony of the police officer who responded to the scene; and 3) allowing the jury to watch a 15-minute video of Ms. Isensee undergoing surgery.
In analyzing the alleged erroneous rulings, the appellate court had to determine if the judge’s decisions in excluding the witnesses’ testimony and allowing the jury to see the video were harmless. The current standard in Florida’s 2nd District for determining if a trial judge’s ruling is “harmless” is set forth in the Damico case, which states that an error is considered to be harmful, if it must be “reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.”

The Trial Judge’s Ruling

The trial judge ruled that the opinions of Dr. Foley, the defense’s board-certified radiology expert, were inadmissible because, while the post-accident MRIs did not show any evidence of immediate trauma such as bleeding or swelling, the lack of evidence did not rule out that an injury had occurred. In other words, Dr. Foley’s opinion did not prove or disprove that Ms. Isensee was injured in the accident.

The appellate court disagreed with this ruling and found that the testimony should have been admitted and then the jury would have been free to weigh what significance if any it would give to the opinion.

Throughout the trial a number of other experts, including the plaintiff’s own surgeon, testified on the issues of swelling and bleeding in relationship to Ms. Isenee’s injury. For that reason, the appellate court found that while the trial judge had erred in not permitting Dr. Foley’s testimony, the error was harmless in that it did not reasonably and probably change the outcome of the verdict.

The second error that was raised on appeal was limiting the testimony of the investigating police officer. The defense had wanted the jury to hear that only a “short-form” police report was issued because there appeared to be no significant injury at the scene.

The trial court excluded that testimony because the officer had no independent memory of the incident, even after repeated attempts by the defense lawyer to refresh his recollection. In addition, the information and statements made by a person involved in an accident that are contained in the crash report are privileged, meaning such information cannot be used at a trial for or against a party.

Harmful or Harmless

Either way, the appellate court found that even if it was an error to fail to advise the jury that only a short-form police report was used, the mistake was harmless as it cannot be said that allowing the jury to hear which form was used by the police would have probably changed the outcome of the verdict.

The final issue on appeal was the admissibility of the video of the surgery. Under Florida’s evidence law, the admissibility of photographic or video evidence is a question of relevancy, not necessity. And even relevant evidence can still be inadmissible if the value of that evidence is outweighed by the prejudice it may cause the other party.

Before the video of the surgery was shown to the jury, the trial judge reviewed it and noted that it was not particularly gruesome and was much like something that could be seen on television. Dr. Moskowitz, the surgeon who performed the procedure, testified that the video would help him explain to the jury how and why the surgery was performed.

Based upon the record, the jury was shown only 15 minutes of the 1 hour and forty-five minute surgery. Therefore, the appellate court could not find any error committed by the trial judge in allowing the video to be seen.

This personal injury plaintiff was able to keep her million-dollar verdict, which is something I rarely see occur in Florida’s appellate court system. You can read the entire car accident appellate decision of Zelaznik v. Allstate here. The decision in this case has a pending motion for rehearing.

It should also be noted that this case and appeal came out of Florida’s 2nd District, which compared to Florida’s 4th District Court of appeal has a different standard as to what constitutes harmless error. Florida’s 4th District Court of Appeal defines a harmless error as follows: “more likely than not that the error did not influence the trier of fact and therefore contribute to the verdict.”

That conflict in the application of the rules between the two districts is an issue that must be resolved by Florida’s Supreme Court, which is currently reviewing the matter in another case.

Aronfeld Trial Lawyers Can Help

I offer anyone who has been injured in a car, motorcycle, truck, bicycle, or pedestrian accident in Florida a free initial consultation. I have over 20 years of legal experience representing and helping people across the state in recovering money for pain, suffering, lost wages, and medical expenses. Please call my office today, at 1-866-597-4529, or email me to discuss your potential case.